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2005 (5) TMI 196 - CESTAT, MUMBAIDuty liability - Importer - duty free licences - Penalty - misdeclaration of the goods - proper opportunity to defend not provided - Violation of Natural justice - Whether the Commissioner was right in holding that the duty not levied on the imported goods extending the benefit of notification 204/92 is demandable from the original licence holder even when he was not the importer - HELD THAT:- The facts in the present case being pari materia with the case in Jupiter Exports [2001 (11) TMI 153 - CEGAT, MUMBAI]. The decision in that case is applicable to the facts of this case. We therefore hold that duty cannot be demanded from the present appellant M/s. Dharam Exports on the goods imported by some other importers. We, however, hold that duty demanded on the goods imported by M/s. Dharam Exports as indicated in the annexure D to the show cause notice is sustainable and in any case the appellants have not even contested it. In regard to quantification of duty we hold that the Commissioner quantified the duty liability correctly. The appellants have not brought out any valid argument, insofar as the imports made by Dharam Exports, as to how the duty was wrongly calculated. The Commissioner in para 30 of his order dealt with this issue and gave his findings. The appellants before us have not come out with any fresh pleas to rebut these findings. Hence we reject the plea that duty liability of M/s. Dharam Exports who utilised the advance licences to import duty free goods is correctly arrived at. Penalty imposed on the karta of M/s. Dharam Exports, Shri Suresh Jumani u/s 114(i) of the Customs Act. We are in full agreement with the submissions made by the learned DR. The extent of fraud committed at the time of export of goods under DEEC is gigantic. The full benefit of advance licences obtained by fraud and misdeclaration is reaped by Suresh Jumani. The goods in this case where the content of PFY contained in the export goods is misdeclared amounts to misdeclaration of the goods in the context of the DEEC scheme under which the goods were sought to be exported. The goods became prohibited goods on account of misdeclaration. Suresh Jumani was well aware of the fact, being the exporter, that his goods did not contain the PFY content as declared. He was also aware of the fact that the certificates purported to have been given by SASMIRA are forged and bogus. In fact he entered into a conspiracy with M/s. Amol Shipping Agency to defraud the Revenue. The Commissioner has clearly brought out the role played by Suresh Jumani while imposing penalty on him. We do not see any infirmity in the order of the Commissioner. The penalty imposed on him is upheld. We now come to the appeal of Shri Ashok Pokharkar. Firstly, his statements which are inculpatory are against him. Secondly, his employees, one a forger and the other a manipulator, clearly implicate him in the whole episode. For monetary gain, he indulged in nefarious activities such as having export documents forged, manipulated, altered and tampered under his instructions. He is clearly a person concerned with the exports which resulted not only in huge loss to the exchequer but also rendered the export goods liable to confiscation. The Commissioner has rightly imposed a penalty u/s 114(i) of the Customs Act. The leniency shown by the Commissioner does not call for any further reduction in the penalty. The appeals are thus disposed off in the above terms.
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